• A woman doctor says an adult woman should be able to choose whether to undergo circumcision, calling it a matter of personal dignity and a rite of passage.
• She says the law criminalising FGM is unconstitutional as it treats men and women differently, discriminates against women. Opponents say the cannot be equated.
Image: FILE
A doctor who wants female genital mutilation decriminalised says the law on circumcision is entrenching gender bias by treating men and women differently.
Dr Tatu Kamau told a three-judge bench of the High Court on Thursday even the use of the word circumcision is favourable when referring to men But when it comes to women, it is immediately called mutilation.
The processes are quite different, however, she called female circumcision "minor surgery". The bench includes justices Lydiah Achode, Margaret Muigai and Kanyi Kimondi.
The hearing was conducted virtually. Kamau asked why even a teenage boy can be circumcised yet an adult woman cannot be allowed to consent to 'female circumcision'.
She quoted different court decisions that allow women sex reassignment surgery, which is more complex than FGM.
“I have no problem with a woman going through sex re-assignment. If a woman wants to change into a man it's not problematic. What I have a problem with is that the law discriminates against a woman who wants to have a minor surgery of circumcision,” Kamu said.
She added, “My Lords, there’s medical capacity to convert a woman’s genitals into a male one and if we have that capacity, then we have one to do a minor circumcision surgery safely.”
The doctor asked why the state has not banned other harmful practices such as smoking among women, yet it bans what some consider a cultural rite of passage.
The state needs to give women the right to decide if they want circumcision or not, she said.
Kamau is challenging the government’s decision to ban FGM in 2011. By law, anyone found performing FGM is liable to a prison term ranging from three years to life.
Abettors also are punished.
The law even makes it a criminal offence to ridicule a girl or woman who has not undergone the cut or abuses a man who marries an 'uncut' woman.
The punishment is three years in jail or a fine of Sh200,000.
Dr Kamau's case is being opposed by a number of NGOs, including Fida, Equality Now and the the Centre for Rights Education and Awareness.
She said that her culture and cultural practices are protected by the Constitution and stopping her people from carrying out FGM is a violation of their rights.
“Every citizen has a right to equality and freedom from discrimination but the said Act shows open intolerance to women who wish to undergo female circumcision even for the purposes of upholding their culture,” she said.
She cites Article 19 of the Constitution that seeks to protect the dignity of an individual or communities.
She said the authors of the Constitution left it open for an individual to interpret what will dignify them. In her case, undergoing FGM both as a culture and rite of passage, dignifies her.
“If an adult woman feels that she will be dignified by going through FGM or celebrating her culture, that should be protected,” Dr Kamau said.
The Attorney General's office, NGOs and medical experts said Kamau's case should be dismissed.
State counsel Mitchelle Omuom said the matter before court is not one relating to women’s right to smoke or do breast enhancement but FGM.
She said Dr Kamau is not even clear about which community she is fighting for or which individual women she is defending.
Omuom said the right to participate in cultural life is not an individual's right but one that accrues to a community.
“It is closely related to the right to associate and not the right to make individual decisions,” she said.
Lawyer Colbert Ojiambo, who was among many lawyers who addressed the court, said FGM is something different cultures used to subdue women and control their sexual desires.
He said in most African cultures a woman who had not undergone FGM was considered not eligible for marriage in the past, but that’s not the case nowadays.
“Traditionally, power and resources were held by men and for women to get access could only be through marriage and therefore men did not suffer cultural discrimination as much as women," he said
The court will deliver its judgment on December 14 at noon.
(Edited by V. Graham)